Last Modified on September 13, 2018
PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT.
365 provides a mobile application and web-based platform that connects consumers to a selection of films and other audio-visual content and our player for viewing the content, as well as many other products, features, tools, materials or other services offered by 365 from time to time.
You must agree to this ToU in order to use the Site, App and/or the Service, even if you are an employee or contractor of a company that has licensed the use of the Site, App and/or the Service. BY AGREEING TO THESE TERMS (INCLUDING BY A CLICK-THROUGH OR OTHER AGREEMENT), YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS TOU AND AGREE TO ALL OF ITS RESPECTIVE TERMS AND CONDITIONS. Also, by agreeing to this ToU (including by a click-through or other agreement), you are waiving, to the extent permitted under applicable law, any rights or legal requirements that require an original (non-electronic) signature or the delivery or retention of non-electronic records in order for a contract to be legally binding. If you use the Site, App and/or the Service, or click to accept or agree to this ToU if presented to you in a user interface for the Site, App and/or the Service, you are irrevocably deemed to have accepted this ToU and all of its terms and conditions. By accepting this ToU or using any aspect of the Site, App and/or the Service, you represent and warrant that you have the legal capacity to enter a contract in the jurisdiction where you reside. If you do not accept this ToU, then you may not use any aspect of the Site, App or the Service.
BY ACCEPTING THESE TERMS, YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. With limited exceptions, YOU AGREE TO WAIVE YOUR RIGHT TO GO TO COURT and that disputes between you and 365 arising out of or relating to this TOU, the Site, App or the Service may be resolved by BINDING ARBITRATION. In such circumstances, your rights may be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review the Binding Arbitration section below for the details regarding your obligation to resolve any disputes in arbitration. Please note that the requirement to submit to arbitration specifically does not apply you are living in, or are using the Service in some jurisdictions, including the UK, Australia and the Province of Québec.
- 365 Service.
- Rentals. Rentals of movies are available on a streaming basis on or through the Service. Any rental can be played/viewed (and replayed) in a given consecutive period, as will be communicated to you at the time of rental (the “Viewing Window”), provided the initial viewing of the rental takes place within a specified period of time after you rent the title (the “Rental Window”), as will be communicated to you at the time of rental. If you fail to view the rental within the Rental Window, or your Viewing Window, your rental will expire, and you will not be entitled to a refund or credit of any amounts paid.
- Purchases. Movies and other content may be purchased on or through the Service. When you purchase a movie you are purchasing a non-exclusive licence to access that movie on a streaming basis on or through the Service. Some movies or other content that you previously purchased may not be available for subsequent streaming at any given time due to licensor restrictions or other causes, and 365 shall have no liability to you in any such event. In all cases, you bear all risk of loss for any products that you have purchased to the extent permitted by applicable law.
- Downloads. Any movies or other content made available for download through the Service may only be downloaded and stored on authorized and registered devices, and in no event on more than the number of permitted registered devices set forth by 365 from time to time. Your access to movies and other content does not transfer to you any commercial or promotion use rights in such materials. You acknowledge that all other rights in such materials are reserved to their respective content owners and their licensors or affiliates, and your use of such materials outside of the Service or in any manner not otherwise permitted herein is strictly prohibited. 365 and/or its content licensors may include digital watermarks (embedded bits of information in addition to the audiovisual file) in any streamed files that add sales information to each streamed file such as (but not limited to) the fact that the video content was purchased from 365, the date and time of purchase, or information about the title (title, actors, studio, etc.). 365 will not include any information personally connected to you in any such digital watermark.
- Availability. The Service will make available a broad selection of movies and other content, however, you acknowledge and agree that your ability to access such titles will depend on you having all necessary equipment and telecommunications systems required and that the availability of such titles will change from time to time, and will in some cases, depend upon 365’s rights to specific titles. 365 makes no guarantee as to the availability of specific movies or other content at any given time.
- Explicit Content. You understand that by using the Service, you may encounter content that may be deemed offensive, indecent or objectionable, which content may or may not be identified as having explicit language or other features. Nevertheless, you agree to use the Service at your sole risk, and 365 shall have no liability to you for content that may be found to be offensive, indecent or objectionable. Content types and descriptions are provided for convenience, and you acknowledge and agree that 365 does not guarantee their accuracy.
- ToU Updates. 365 may update this ToU at any time, and 365 will post the updated version of this ToU on the Site, App or the Service. You understand and agree that you will be deemed to have accepted the updated ToU if you use any aspect of the Site, App or the Service after the updated ToU is posted. If at any point you do not agree to any portion of this ToU then in effect, you must immediately stop using the Site, App and the Service. If 365 makes any change to this ToU, we will notify you of the change at least 30 days before the changes come into force, such as through sending an email to any address you may have used to register for an account, through a pop-up window on the Site/App, or other similar mechanism. Disputes arising under this ToU will be resolved in accordance with the version of the ToU in place at the time the dispute arose. We encourage you to review this ToU frequently to stay informed of the latest modifications. You may terminate the Service without cost, penalty or cancellation indemnity by sending 365 a notice to that effect no later than 30 days after the changes come into force.
- Provisions of the Site, App and Service. You are responsible for any Internet connection and telecommunications fees and charges that you incur when accessing the Site, App and/or the Service and when you stream or download movies or other content. You acknowledge and agree that 365 may make changes to any aspect of the Site, App and/or the Service at any time without notifying you in advance.
- Termination of Service. 365 reserves the right to deny service to any person or entity at 365’s sole and absolute discretion. You acknowledge and agree that 365 may stop providing the Site, App and/or the Service or restrict your use of the Site, App and/or Service at any time, without notifying you in advance, for any reason or no reason, including, without limitation, for any violation of this ToU or if 365 suspects that you have used any aspect of the Site, App and/or the Service to conduct any fraudulent or illegal activity or to encourage or facilitate any other person to do so. If 365 disables your access to your account, you may be prevented from accessing the Site, App and/or the Service, your account details and/or any materials contained in your account. 365 may also in its sole discretion, and at any time, modify or discontinue providing the Service, or any part thereof, with or without notice. Additionally, you agree that 365 shall not be liable to you or any third-party for any interference with, or termination of, your access to the Service, to the extent permitted by applicable law.
- Accounts and Security.
- Account. You must be at least eighteen (18) years old to use the Site, App and the Service, and have reached the age of majority in your jurisdiction of residence. By agreeing to this TOU, you represent and warrant that you are at least eighteen (18) years old and the age of majority in your jurisdiction of residence, and have not previously been suspended from using the Site, App or Service. You do not need to create an account to visit the Site, but you may be required to create an account to access and utilize certain aspects of the Service by completing the registration process. You may be required to provide information about yourself as part of the registration process or your continued use of the Service. You agree that any registration information that you submit to 365 will be correct, accurate and up to date. You may be required to provide payment information or information about yourself as part of the registration process or your continued use of the Site, App and/or the Service.
- Account Security. Maintaining account security is very important. You are solely responsible for maintaining the confidentiality of your account password and for all activities that are conducted via your account. You agree to notify 365 immediately if you become aware of any unauthorized use of your password or of your account.
- Account Sharing or Transfers. Accounts are registered to you personally and may not be sold, traded, gifted or otherwise transferred at any time under any circumstances. You may not share your account. You may not disclose your login details, including your password, to anyone else.
- Cancellation by You. You have the right to cancel your account at any time. You may cancel your account by sending an email to firstname.lastname@example.org.
- Termination by 365. 365 may at any time terminate your account, to the extent permitted by applicable law, if:
a. 365 determines that you are (i) in breach of or otherwise acting inconsistently with this ToU or (ii) engaging in fraudulent or illegal activities or other conduct that may result in liability to 365;
b. 365 determines it is required by law to terminate your account; or
c. 365 decides to stop providing the Site, App and/or the Service.
- Payment and Cancellation Terms.
- Payment Terms. When you rent or purchase movies or content, you will be charged immediately for the rental or purchase. You agree to pay all applicable fees and taxes incurred by you or anyone using your account. Unless otherwise noted, all payments are to be made in the currency in which your order is placed. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable. In some territories, 365 will be required to charge, and you agree to pay, applicable sales, use, value-added, goods and services, and other taxes as may be charged to you by 365 in connection with your rental or purchase. 365 may, from time to time, modify, amend, or supplement its pricing and billing procedures, and such changes shall be effective immediately. These payment terms are subject to change without prior notice at any time. To the extent permitted by applicable law, if there is a dispute regarding your payment of fees or the Services, 365 shall have the right to terminate your account without prior notice. OTHER THAN AS EXPRESSLY STATED HEREIN, YOU ACKNOWLEDGE AND AGREE THAT ANY APPLICABLE FEES AND OTHER CHARGES ARE NON-REFUNDABLE IN WHOLE OR IN PART. YOU ARE FULLY LIABLE FOR ALL CHARGES TO YOUR ACCOUNT, INCLUDING ANY UNAUTHORIZED CHARGES.
- Cancellation Rights. You may cancel your order for movies or content at any time within 14 days of purchase or rental (in accordance with the procedures set out in section 1.21 below), provided at all times that you may not cancel an order for movies or content once you have started streaming and/or using it and/or once a download has commenced. By streaming or using or downloading movies or content you are explicitly consenting to 365 supplying to you such movies or content during any cancellation period you may be entitled to as a consumer and are acknowledging and agreeing that you are losing your right as a consumer to cancel, unless otherwise prohibited by law.
- Refunds for Cancellations. If you validly exercise your cancellation right in accordance with this section, 365 shall refund you the amount paid for the relevant movie or content, including any delivery costs.
- Refund Timescale. 365 shall process any refund within fourteen (14) days after the date on which you inform us of your decision to cancel the order (in accordance with section 1.21 below) by using the method you used for payment.
- How to Cancel. To cancel an order, you must give 365 a clear statement of your decision to cancel before the end of the applicable cancellation period. You may submit a model cancellation form, which can be found below, or alternatively an updated cancellation form may be provided by 365, as such may be made available through the Site and/or App in the future. For help please contact email@example.com.
Model cancellation form:
– 365Flix Ltd, 18 Soho Square, 3rd Floor, London W1D 3QL.:
– I hereby give notice that I withdraw from my contract for the following:
[INSERT ORDER ID, MOVIE AND/OR CONTENT]
– Ordered on [INSERT DATE] / received on [INSERT DATE]
– Name of consumer
– Address of consumer
– Email address of consumer (optional)
- Payment Authorization. You authorize 365 to charge all sums for orders that you make via the payment method designated in your account. When you order through the Site or App, a temporary pre-authorization hold may be placed on your designated payment method to verify that the card is valid and has funds available for your intended purchase. The amount of this pre-authorization hold may be greater or less than the order total quoted at checkout. However, you will only be charged the final order total once your order is registered as complete within the 365 system.
- Additional Information. 365 reserves the right to request additional information from you if we have reason to believe, in our sole discretion, that a payment method may be fraudulent. In such circumstances, 365 reserves the right to suspend the processing of the order pending the outcome of 365’s review of the relevant payment.
- Use Requirements.
- License Grant. Subject to the terms and conditions of this ToU, 365 hereby grants you a limited, non-exclusive, personal, non-sublicensable, non-assignable license to (i) download, install and use the Site and App in connection with your use of the Service on compatible devices that you own or control, solely for your non-commercial use, and (ii) use the Service in accordance with this ToU and any rules, restrictions or documentation set forth by 365 from time to time. 365 reserves all rights not expressly granted to you.
- Installation. In connection with the Service, you may install the App or access the Site on one or more mobile devices that you own or control and that meet the minimum specifications provided by 365.
- Updates. 365 may require that you download and install updates to the App from time to time. You acknowledge and agree that 365 may update the Site or App and/or the Service from time to time with or without notifying you, and may add or remove features or functions to the App and/or the Service at any time in its sole discretion. You acknowledge and agree that 365 has no obligation to make the Site, App or Service available to you, make any subsequent versions of the Site, App or Service available to you or to continue to support the Site, App or Service in any way. You acknowledge that your access to the Site, App and/or the Service may not be continuous, features may change during your use of the site, App and/or the Service, and 365 may terminate your access to the Site, App and/or the Service or stop offering the Site, App and/or the Service at any time.
- Restrictions and Conditions of Use.
- Use of the App and the Service. 365 permits you to view and use the Site, App and the Service solely for your own personal use. You agree not to license, create derivative works from, transfer, sell or re-sell any information, content, materials, data or services obtained from the Site, App and/or the Service. 365 reserves the right to add or remove information, content or services from the Site, App and/or the Service at any time at its sole discretion.
- Accessing the Service. You agree not to access, or attempt to access, the Service by any means other than through the user interface provided through the Site or the App. You specifically agree not to access, or attempt to access, the Service through any automated means (including, without limitation, through the use of scripts, bots, spiders or web crawlers).
- No Violation of Laws. You agree that you will not, in connection with your use of the Site, App or the Service, violate any applicable law, ordinance, rule, regulation or treaty. Without limiting the foregoing, you agree that you will not make available through the Site, App or the Service any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity).
- Use Restrictions. You may not connect to or use the Site, App or the Service in any way that is not expressly permitted by this ToU.
- You must not: (i) remove any trademarks, copyright notices, proprietary notices, or any other notice contained in any content, materials, or individual elements provided on or through the Site, App or the Service; (ii) other than where expressly permitted by applicable law, cause, permit or authorize the modification, creation or reproduction of derivative works, translation, reverse engineering, decompiling, disassembling, overcoming any encryption technology or security measures or hacking of the Site, App or the Service; (iii) make any commercial use, sell, assign, rent, lease, broadcast, re-transmit, communicate to the public, act as a service bureau, or in any way exploit any content, materials or individual elements provided on or through the Service without 365’s prior written consent; (iv) grant rights in the App or the Service, including, without limitation, through sublicense, to any other person or entity without the prior written consent of 365; (v) frame or utilize framing techniques to enclose any content, materials or individual elements provided on or through the Service without 365’s prior written consent; or (vi) make any false, misleading or deceptive statement or representation regarding 365 or the App or the Service.
- Without limiting the foregoing, you agree that you will not: (i) institute, assist, encourage or become involved in any type of attack including, without limitation, denial of service attacks, upon the Site, App or the Service (or any servers, systems or networks connected to the Site, App or the Service) or otherwise attempt to obstruct, limit the functionality, disrupt or interfere with the operation of the Site, App or the Service or any other person’s or entity’s use of the App or the Service (or any servers, systems or networks connected to the Site, App or the Service); (ii) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content displayed on or through the Service or transmitted through any use of the Service; (iii) attempt to gain unauthorized access to the Site, App or the Service, user information, or any servers, systems or networks connected to the Site, App or the Service; (iv) use the Site, App or the Service for any commercial purpose unless you are specifically authorized to do so in a separate written agreement with 365, or for the benefit of any third party, or charge any person or entity, or receive any compensation for, the use of the Site, App or the Service, unless you are specifically authorized to do so in a separate written agreement with 365; (v) use the Site, App or the Service to develop, generate, transmit or store information that is defamatory, harmful, abusive, obscene, hateful or otherwise illegal; (vi) use the Site, App or the Service to perform any unsolicited commercial communication not permitted by applicable law or use the Site to upload, post, transmit promotional materials, junk mail, spam or other form of solicitation; or (vii) use the Site, App or the Service to engage in any activity that (A) constitutes harassment or a violation of privacy, threatens other people or groups of people; (B) is harmful to children in any manner; (C) constitutes phishing, pharming or impersonates any other person or entity, or steals or assumes any person’s identity (whether a real identity or online nickname or alias); or (D) violates any applicable law, ordinance, rule, regulation or treaty.
- Without limiting the foregoing, you agree that you will not use the Site, App or the Service for any other unlawful, prohibited, abnormal or unusual activity as determined by 365 in its sole discretion.
- No Data Mining or Harmful Code. You agree that you will not (a) obtain or attempt to obtain any information or data from the Site, App or the Service including, without limitation, email addresses or mobile phone numbers of users or other data; (b) intercept, examine or otherwise observe any proprietary communications protocol used by the Site, App or the Service, whether through the use of a network analyzer, packet sniffer or other device; or (c) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan horse, trap door, time bomb or any other codes, instructions or third party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, interfere with, damage or disassemble, any aspect of the Site, App or the Service.
- Violation of this ToU. You acknowledge and agree that you are solely responsible, and 365 has no responsibility or liability to you or any other person or entity, for any breach by you of this ToU or for the consequences of any such breach. 365 may immediately terminate its relationship with you if you are using the Site, App and/or the Service contrary to the restrictions found in this paragraph or any other terms of this ToU.
- Links from the Service. The Site, App and the Service may contain links to websites or services operated by other parties. 365 provides these links to other websites and services as a convenience and use of these websites is at your own risk. The linked websites and services are not under the control of 365 and 365 is not responsible for the content available on the other websites or services. Such links do not imply 365’s endorsement of information or material on any other website or service and 365 disclaims all liability with regard to your access to and use of such linked websites and services.
- Links to the Service. Unless otherwise set forth in a written agreement between you and 365, you must adhere to 365’s linking policy as follows: (a) the appearance, position and other aspects of any link to the Site, App or the Service may not be such as to damage or dilute the goodwill associated with 365’s or its licensors’ names and trademarks; (b) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, endorsed by or associated with 365; (c) you may not remove any trademarks, copyright notices or any other notice contained in any content, materials or individual elements provided on or through the Service; and (d) when selected by a user, the link to the Site, App or the Service must display the Site, App or the Service on full-screen and not within a “frame” on the linking website. 365 reserves the right to revoke its consent to any linking by a user at any time and in its sole discretion.
- Intellectual Property.
- Trademarks. The 365 name and logo are trademarks and service marks of 365. Unless permitted in a separate written agreement with 365, you do not have the right to use any of 365’s trademarks, service marks or logos and your unauthorized use of any of these may be a violation of national, federal and state trademark laws.
- Ownership. You acknowledge and agree that 365, or its licensors, owns all right, title and interest in and to the Site, App and the Service, including all intellectual property, industrial property and proprietary rights recognized anywhere in the world from time to time and that the Site, App and the Service is protected by U.S. and international copyright laws. The owners and licensors of content made available through the Service are intended third-party beneficiaries of this ToU and shall have the right to enforce this ToU against you and invoke all rights hereunder including limitations of liability. The delivery of a product or content does not transfer to you any commercial or promotional use rights in the product or content. Further, you acknowledge that the Site, App and the Service may contain information that 365 has designated as confidential and you agree not to disclose such information without 365’s prior written consent.
- Copyright Agent. 365 respects the intellectual property rights of others and requires that people who use the Service do the same. 365 maintains a policy of terminating the accounts of users of the Service who engage in conduct which infringes the intellectual property rights of third parties, including the owners or licensors of content. If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent, designated as such pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(2) or any other applicable law, named below:
• Your address, telephone number, and email address;
• A description of the copyrighted work that you claim has been infringed;
• A description of where the alleged infringing material is located;
• A statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law;
• An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
• A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
U.S. Copyright Agent: 365 FLIX, LLC
360 Central Avenue, Suite 800
St. Petersburg, FL 33701 USA
Tel: +1 (727) 800-8076 Email: firstname.lastname@example.org
International Copyright Agent:
18 Soho Square, 3rd Floor
London W1D 3QL
- Feedback. You may choose to, or 365 may invite you to, report abusive users, submit comments, bug reports, ideas or other feedback about the Site, App and/or the Service (“Feedback”) to email@example.com. By submitting Feedback, you agree that 365 is free to use such Feedback at its discretion without any obligation to you. 365 may also choose to disclose Feedback to third parties. You hereby grant 365 a royalty-free, perpetual, irrevocable, transferable, sublicensable, worldwide, nonexclusive license under all rights necessary to incorporate and use your Feedback for any purpose.
- Submitted Content.
- Content. 365 is not the source of, does not verify or endorse and takes no responsibility for the content submitted using the Site, App and/or the Service. The content is entirely the responsibility of the person from whom such content originated whether publicly posted or privately transmitted, on the App or Site, or through the use of the Service. You, and not 365, are entirely responsible for the content you choose to communicate, upload, post, email, transmit, distribute or otherwise make available and access using the Site, App and/or the Service. You acknowledge that you will have the burden of proving that any such content does not violate any laws or infringe any third-party rights. 365 may from time to time monitor misuse of our Service and filter objectionable and harmful content. If 365 learns of any content that is objectionable, harmful and/or in breach of this ToU, we will take appropriate action, in our discretion, to provide assistance, remove content, block access to certain features, disable an account, terminate an account, contact law enforcement or take such other steps as we may deem appropriate in the circumstances. In many cases, this may occur within 24 hours of our identifying the applicable content. Further, users have the ability to block abusive users from reaching them through the Site, App and/or Service by clicking on the “block” icon located next to the abusive user’s account name. For clarity, 365 may in its sole discretion block, or otherwise remove content as part of its effort to protect the Site, App, the Service, users of the Site or its customers, or otherwise enforce the terms of this ToU. Additionally, 365 may in its sole discretion remove such content and/or terminate this ToU and your account if you use any content that is in breach of this ToU.
- “Submitted Content” consists of information or materials you submit or make available through the Site, App and/or the Service. The Service may include the provision of or access to certain review and comment areas, forums, message boards, profile information, and other similar areas (collectively, “Interactive Areas”), in which you or other users may create, post, link, store, or otherwise make available (collectively, “Post”) reviews, comments, questions, data, or other materials (collectively, “User Content”). You are solely responsible for your use of such Interactive Areas and use them at your own risk. In particular, you are responsible for ensuring that you do not Post material that (a) is protected by copyright, contains trade secrets or otherwise is subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have express permission from the rightful owner; (b) is false or is a misrepresentation; (c) is offensive, unlawful, harmful to minors, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or that encourages conduct that would be considered a criminal offense, gives rise to civil liability, violates any law, or is otherwise objectionable; or (d) impersonates another person. 365 may in its sole discretion block, prevent delivery of or otherwise remove the content of communications as part of its effort to protect the Service or its customers, or otherwise enforce the terms of this ToU. Further, 365 may in its sole discretion remove or terminate your account if you Post any content that is in breach of this ToU.
- You hereby grant to 365 a royalty-free, worldwide, perpetual, irrevocable and fully transferable right and license to use, copy and store the Submitted Content for the purpose of making available, enhancing, operating, developing and otherwise exploiting 365’s products and services, including the Site, App and/or the Service or any other websites and mobile applications. You hereby represent, warrant and covenant that any Submitted Content you provide does not include anything to which you do not have the full right to submit under this paragraph.
- You acknowledge that the Submitted Content is your sole responsibility. You are entirely responsible for the Submitted Content and agree that, under no circumstances, will 365 be liable in any way for Submitted Content, including, but not limited to, any errors or omissions in any Submitted Content, or any loss or damage of any kind incurred as a result of the use or distribution of any Submitted Content transmitted or otherwise made available via the Service.
- Push Notifications. When you install the App on your mobile device, you will be given the opportunity to agree to receive push notifications, which are messages an app sends you on your mobile device even when the app is not on. You can turn off notifications by visiting your mobile device’s “settings” page.
- Email. Where we have your consent or are otherwise permitted by applicable law, we may send you emails concerning our products and services, as well as those of third parties. You may opt-out of promotional emails by following the unsubscribe instructions in a promotional email.
- Children. The App, the Site and the Service are not intended for use by children under 13 years of age (or such other minimum age as is applicable in your country of residence), and 365 does not knowingly collect information from children under 13 (or such other minimum age as is applicable in your country of residence) or allow them to access the Service. If you are under 13 (or such other minimum age as is applicable in your country of residence), please do not submit any personal information about yourself to 365.
- Disclaimer of WarrantIES.
- YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE APP AND THE SERVICE IS AT YOUR SOLE RISK.
- TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, 365 EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS INCLUDING, WITHOUT LIMITATION, WARRANTIES AND CONDITIONS OF NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
- 365 MAKES NO EXPRESS WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY MATERIALS, INFORMATION OR DATA AVAILABLE THROUGH, OR THE PERFORMANCE OF, THE APP OR THE SERVICE.
- 365 DOES NOT REPRESENT OR WARRANT THAT (a) YOU WILL BE ABLE TO ACCESS OR USE THE APP AND THE SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; (b) THAT OPERATION OF THE APP AND THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (c) YOUR USE OF THE APP AND THE SERVICE WILL MEET YOUR REQUIREMENTS; OR (d) DEFECTS IN THE OPERATION OF THE APP AND THE SERVICE WILL BE CORRECTED. THE APP AND THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. 365 IS NOT RESPONSIBLE FOR ANY DELAYS, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
- YOU ACKNOWLEDGE AND AGREE THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE APP AND THE SERVICE IS AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER, MOBILE PHONE OR OTHER DEVICE OR ANY LOSS OF DATA RESULTING FROM DOWNLOADING OR OBTAINING SUCH MATERIAL.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimers may not apply to you.
- Limitation of Liability; SOLE AND EXCLUSIVE REMEDY.
- TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, 365 AND ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”) SHALL NOT BE LIABLE TO YOU UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR:
- ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, USE, DATA OR GOODWILL, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE APP AND THE SERVICE, EVEN IF 365 OR THE RELATED PARTIES HAVE BEEN ADVISED OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES;
- THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; OR
- THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE ANY MATERIALS, INFORMATION OR DATA MAINTAINED BY OR THROUGH YOUR USE OF THE APP AND THE SERVICE.
If you live in the United Kingdom or have purchased/are using the Service in the United Kingdom, the above paragraph shall not apply to you. Instead, the following shall apply:
Nothing in these terms shall limit or exclude our liability to you:
• for death or personal injury caused by our negligence;
• for fraudulent misrepresentation; or
• for any other liability that, by law, may not be limited or excluded.
Subject to this, in no event shall we be liable to you for any business losses, and any liability we do have for losses you suffer arising from any contract shall not, in respect of any 12-month period (calculated from the date of that contract), exceed the charges payable by you for the relevant product(s) / the Service in that 12-month period and is strictly limited to losses that were reasonably foreseeable. Losses are foreseeable where they could be contemplated by you and us at the time your order is accepted by us.
If you are resident in Australia or have purchased/are using the Service in Australia:
- nothing in this TOU excludes, restricts or modifies any condition, warranty, statutory guarantee, right or remedy implied or imposed by common law, statute or regulation which cannot be lawfully excluded, restricted or modified, which may include the Competition and Consumer Act 2010 (Cth) and corresponding provisions of State or Territory legislation containing implied terms and/or statutory guarantees which operate to protect the purchasers of goods and services in various circumstances.
- All express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise), relating to this Agreement, that are not contained in it, are excluded to the fullest extent permitted by law.
- If any condition, statutory guarantee or warranty is implied into this Agreement or applies by operation of law (which may include the Competition and Consumer Act 2010 (Cth) and corresponding provisions of State or Territory legislation) and cannot be excluded but 365ais able to limit its liability for a breach of such condition, statutory guarantee or warranty, the liability of 365 for breach of that condition, statutory guarantee or warranty is limited, to the extent permitted by law, at 365’s discretion, to:
- in the case of goods: the replacement or repair of goods; or the supply of equivalent goods; or the payment of the cost of replacing the goods or having the goods repaired or of acquiring equivalent goods; and
- in the case of services: the supply of the services again or the payment of the cost of having the services supplied again.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of 365 and the Related Parties shall be limited to the fullest extent permitted by law. If you live in the Province of Québec or have purchased/are using the Service in the Province of Quebec, 365 cannot be liberated from the consequences of its own acts or the acts of its representatives.
- 2.61.Indemnification. You agree to defend, indemnify and hold 365 and the Related Parties harmless from and against any and all claims, demands, liabilities damages and losses including, without limitation, reasonable attorneys’ fees, resulting from or arising out of (a) your use of the Site, App or the Service; or (b) your breach of this ToU or any other policies that 365 may issue for the Site, App or the Service from time to time.
- 2.62.Governing Law; Jurisdiction.
- 2.63.Jurisdiction. If you are using the Service in the United States the following applies: The laws applicable to the interpretation of this ToU shall be the laws of California, without regard to conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You and 365 agree that, except as otherwise provided in Section 1.72 below, the state and federal courts located in Los Angeles, CA will have exclusive jurisdiction of all disputes arising out of or related to this ToU or your use of the App or the Service and agree to submit to the personal jurisdiction and venue of these courts. Notwithstanding the foregoing, 365 shall be allowed to apply for equitable remedies (including injunctions) in any jurisdiction.
- 2.64.Binding Arbitration and Arbitration Procedures. Further, the following Section 1.62 applies: You and 365 agree that, except as provided in Section 1.62 , all disputes, controversies and claims related to this ToU (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in this ToU. In the event of a conflict between the terms set forth in this Section 1.62 and the JAMS Rules, the terms in this Section 18 will control and prevail.
Except as otherwise set forth in Section 1.62, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and 365 will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this ToU, (a) you and 365 may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (b) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
- 2.65.Location. The arbitration will take place in Los Angeles, CA unless the parties agree to video, phone or internet connection appearances.
- 2.66.Limitations. You and 365 agree that any arbitration shall be limited to the Claim between 365 and you individually. YOU AND 365 AGREE THAT (a) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (b) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (c) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
- 2.67.Exceptions to Arbitration. You and 365 agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (a) any Claim seeking to enforce or protect, or concerning the validity of, any of your or 365’s intellectual property rights; and (b) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
- 2.68.Arbitration Fees. If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee. If we are initiating arbitration for a Claim, we will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.
- 2.69.Outside the United States Governing Law and Procedures. If you are using the Service in the United Kingdom or any other country outside of the United States, the following applies: The laws applicable to the interpretation of this ToU shall be the laws of England and Wales, except that if you live in a country (which, for the purpose of this paragraph, includes Scotland or Northern Ireland) of the European Union other than England, there may be certain mandatory applicable laws of your country that apply for your benefit and protection in addition to or instead of certain provisions of English law. You agree that any dispute between you and us regarding these terms or any contract will only be dealt with by the English courts, except that if you live in a country of the European Union other than England, you can choose to bring legal proceedings either in your country or in England; however, in the event we bring legal proceedings we must do so in your country. If you are a consumer situated in the European Union, you may submit disputes for online resolution to the European Commission Online Dispute Resolution Platform, information on which can be found here: http://ec.europa.eu/consumers/odr. Notwithstanding the foregoing, 365 shall be allowed to apply for equitable remedies (including injunctions) in any jurisdiction. If you live in the Province of Québec or have purchased/are using the Service in the Province of Québec, the above paragraph shall not apply to you.
- 2.70.Severability. You and 365 agree that if any portion of this ToU is found illegal or unenforceable, that portion shall be severed and the remainder of the ToU shall be given full force and effect.
- 2.71.Survival. This Binding Arbitration section of this ToU will survive any termination of your relationship with 365.
- 2.72.Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Site, App or the Service or to receive further information regarding use of the Site, App or the Service.
- 2.73.Notice Regarding App Stores. To the extent that you are using our mobile applications that you downloaded through a third party’s App store, you further acknowledge and agree to the terms of this paragraph. You acknowledge that this ToU is between you and 365 only, not with the owner or operator of the App store (the “App Store Provider”), and the App Store Provider is not responsible for the App or the Service and the content thereof.
- 2.74.The App Store Provider has no obligation whatsoever to furnish any maintenance and support services with respect to the App or the Service. In the event of any failure of the App or Service to conform to any applicable warranty, you may notify the App Store Provider and the App Store Provider will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, the App Store Provider will have no other warranty obligation whatsoever with respect to the App or the Service.
- 2.75.The App Store Provider will not be responsible for addressing any claims by you or any third party relating to the App or the Service or your possession and/or use of the App or the Service, including, but not limited to (i) product liability claims; (ii) any claim that the App or the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- 2.76.The App Store Provider will not be responsible for the investigation, defense, settlement and discharge of any third-party claim that the App or the Service and/or your possession and use of the mobile application infringes that third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the App or the Service. You acknowledge and agree that the App Store Provider and its subsidiaries are third-party beneficiaries of this ToU, and upon your acceptance of this ToU, the App Store Provider will have the right (and will be deemed to have accepted the right) to enforce this ToU against you as a third-party beneficiary of this ToU.
- 2.77.You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- 2.79.ToU Revisions. This ToU may only be revised in a writing signed by 365 or published by 365 via the Site, App or the Service.
- 2.80.No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and 365 as a result of this ToU or your use of the App or the Service.
- 2.81.Assignment. 365 may assign its rights under this ToU to any person or entity without your consent. The rights granted to you under this ToU may not be assigned without 365’s prior written consent, and any attempted unauthorized assignment by you shall be null and void.
- 2.82.Severability. If any part of this ToU is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the ToU shall be given full force and effect.
- 2.83.No Waiver. Our failure to enforce any provision of this ToU shall in no way be construed to be a present or future waiver of such provision, nor in any way affect our right to enforce the same provision at a later time. An express waiver by 365 of any provision, condition or requirement of this ToU shall not be understood as a waiver of your obligation to comply with the same provision, condition or requirement at a later time.
- 2.84.Notices. All notices given by you or required under this ToU shall be in writing and sent to firstname.lastname@example.org.
- 2.85.Equitable Remedies. You acknowledge and agree that 365 would be irreparably damaged if the terms of this ToU were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this ToU, in addition to such other remedies as we may otherwise have available to us under applicable laws.
- 2.86.Entire Agreement. This ToU, including the documents referenced in this ToU, constitutes the entire agreement between you and 365 with respect to the App and the Service and supersedes any and all prior agreements between you and 365 relating to the App and the Service.
- 2.87.Special Promotions. Occasionally, we may offer you the chance to participate in sweepstakes, campaigns, competitions, contests, and surveys (“Special Promotions”) through the Service. Special Promotions may be governed by terms and conditions that are separate from this ToU. If the provisions of a Special Promotion’s terms and conditions conflict with this ToU, those separate terms and conditions shall prevail.
- 2.88.365 Affiliate Program. Occasionally, we will operate the 365 Affiliate Program (the “Affiliate Program”) which allows you to promote the Service in exchange for commissions, as applicable to the relevant features or content. The Affiliate Program is subject to additional terms and conditions, which may be accessed here.